(PC) Drake v. McComas ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAM DRAKE, Case No. 1:22-cv-01149-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 IBAL, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 Defendants. CLAIMS 16 (ECF No. 10) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Sam Drake (“Plaintiff”) is a pretrial detainee proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. The Court screened Plaintiff’s 21 complaint, and he was granted leave to amend. Plaintiff’s first amended complaint, filed 22 December 13, 2022, is currently before the Court for screening. (ECF No. 10.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. II. Plaintiff’s Allegations 14 Plaintiff is currently housed at Fresno County Jail. The events in the complaint are alleged 15 to have occurred while Plaintiff was housed as a pretrial detainee in Fresno County Jail (“FJC”). 16 Plaintiff names as defendants: (1) Keoniyom, Correctional Officer, (2) Margaret Mims, outgoing 17 Sheriff, (3) Steve McComas, Assistant Sheriff, (4) Enriquez, Correctional Officer, (5) S. Nichols, 18 Mailroom Sergeant. All defendant are sued in their individual capacities. 19 Plaintiff alleges a violation of substantive Due Process and First Amendment involving 20 an unconstitutional policy authorizing the deprivation of mail, FCJ Policy E-120.1 Plaintiff 21 alleges that Defendants Mims, McComas, Keoniyom, Enriquez and Nichols deprived Plaintiff of 22 his right not to be punished, from March 2019 through March 4, 2021 (first time period) and from 23 March 28, 2022 through November 30, 2022 (second time period). Plaintiff alleges that the 24 “continuing violation doctrine” applies for the entire time he has been detained at FCJ. The FCJ 25 26 27 1 Plaintiff also claims a violation by FCJ Policy #E-410, contained in the Inmate Orientation Handbook, which is the mirror image of FCJ Policy #E-120. (Doc. 10, Exh. 2, p.17-18.) As the 28 mirror image of FCJ Policy #E-120, any cognizable claim will apply equally to #E-410. 1 Policy #E-120, last revised in 2021, restricts possession of non-nude publications where no sexual 2 activity is depicted, solely based on clothing or pose displayed and directs or authorizes staff to 3 disallow Plaintiff’s access to this material. (See Doc. 10, Exh. 1.) Plaintiff alleges that FCJ Policy 4 #E-120 is punitive in that it forces Plaintiff to suffer removal of mail rights he would have in 5 prison or in a State hospital. 6 Defendant Mims was the policy maker and has final authority to establish all FCJ policies 7 and established FCJ policy #E-120, adding posing, clothing and nonfrontal nudity and partial 8 nudity restrictions which enlarges the Title 15 CCR §3006(c)(17) frontal nudity ban. Defendant 9 McComas was responsible for implementing the policy and procedures. Defendant Nichols was 10 responsible for the FCJ mailroom and is responsible for training and supervision of all employees 11 of the mailroom. Plaintiff alleges that “at all times relevant to this matter Dfnts Mims, McComas 12 and Nichols had a routine practice of depriving detainees of the right to not be punished by 13 removing all constitutional/statutory safeguards against arbitrary deprivation of rights.” Plaintiff had a statutory right (PC §2601) to buy and possess non-nude publications under the First 14 Amendment. 15 Plaintiff alleges that FCJ Policy #E-120’s restriction on purchase and possession of non- 16 nude/side-rear nude publications is excessive in relation to FCJ management and security and 17 does not pose any threat. Defendant Mims made the FCJ Policy #E-120 more restrictive with the 18 intent to oppress and harm Plaintiff and is more restrictive than PC §§ 311, 2600, 2601. 19 Plaintiff filed a grievance in 2019-2020 noting that the provision was modified to 20 incorporate the language of 15 CCR §3006(c). Mims did not change the overly broad, vague, 21 restrictive provision in FCJ Policy #E-120. Depriving Plaintiff of mail violated Due Process. 22 Mims has no authority to implement policies which conflict, supersede or reduce state regulation. 23 Plaintiff alleges that Mims, McComas, Nichols can only deprive Plaintiff of publications what fail 24 the obscenity test otherwise with §3006(e). 25 While at FCJ, Plaintiff has only ordered non-nude noncontraband photos or magazines 26 from the same vendor he ordered from while in state custody 1999-2018 and which were 27 permitted in state custody. FCJ Policy #E-120 contains provisions which are overly restrictive or 28 1 excessive and overly broad language. (FAC ¶27, 28.) Plaintiff describes the various photos, 2 which are attached as exhibits, which fall within the FCJ Policy #E-120, but which should not fall 3 with the policy. Plaintiff alleges that as a “matter of law” the photos he orders are not obscene or 4 sexually explicit and not contraband. 5 Plaintiff alleges that 15 CCR §3006(c) is sufficient to meet the FCJ facility management, 6 safety and security needs. FCJ Policy #E-120 exaggerated the safety, security and facility 7 management needs (at §x, c) to deny possession of sexy photographs. 8 FCJ Policy #E-120 contains a notice provision which does not give sufficient notice of the 9 full contents of the mail parcel being disallowed and permits staff to withhold the full content. 10 Mims, McComas, and Nichols were aware of the inadequate notice and refused to correct it. 11 FCJ Policy #E-120 contains a “Blanket disposal” provision that disallows entire content of 12 mail and is more restrictive than prison mail procedures and is a deterrent restriction that is 13 intended to frustrate/annoy family, friends and acquaintances. In 2021, Defendant Mims revised FCJ policy #E-120 because detainees were filing mail 14 related grievances from 2018-21. Prior to the change, the practice by mailroom staff under 15 Nichols’ leadership was to deprive detainees of non-nude magazines and photos on their own 16 value judgment and issue false or incomplete notices and tell detainees to stop ordering the 17 publications. 18 FCJ Policy #E-120 “Sexy Content Ban” provisions, including policy #E-410’s mirroring 19 provisions (Exh. 1 p. 14 and p. 20-21), deprived Plaintiff of his rights not to be punished. FCJ 20 Policy #E-120 disallows all sexy non-nude magazines featuring adult female models wearing 21 bikinis, lingerie, etc, despite the content not being obscene or sexually explicit within the meaning 22 of 15 CCR 3006(C). (See Exh.. 5.) FCJ treats all non-nude sexy publications as pornography. 23 Plaintiff requires pictorial images to rechannel and release sexual energy in a healthy way 24 because he cannot have one-on-one interaction with the opposite sex. Plaintiff does not purchase 25 pornography and purchases only non-nude or partially nude publications that are permitted. 26 Plaintiff alleges that direct negative consequences of the FCJ Policy #E-120 established 27 by Mims, McComas, Nichols, Keoniyom and Enriquez is increased incidents of theft of photos 28 1 and magazines, increased physical and verbal altercations and sexual abuse, and other similar 2 conduct. Mims, McComas, Nichols, Keoniyom and Enriquez received reports of detainee 3 conflicts, disruptive acts, threats of violent related to mail issues and they drew an inference that 4 the traditional method of enforcing the FCJ Policy #E-120 posed a substantial risk of harm to 5 Plaintiff’s mental health. 6 From March 28, 2022 through the current date, Defendant McComas failed to supervise 7 and train Nichols, Keoniyom and Enriquez to ensure Plaintiff received his state regulation 8 authorized photos, magazines, catalogs from Acme Publications and Inmate Services Company. 9 Defendant McComas intended to inflict emotional distress upon Plaintiff by not directing 10 Defendants Nichols, Enrique and Keoniyom to stop enforcing the FCJ Policy #E-120. 11 Plaintiff arrived at FCJ on January 21, 2022 as a pretrial detainee. Defendants Mims, 12 McComas, Nichols, Keoniyom and Enriquez denied Plaintiff all normal detainee privileges from 13 2018 throughout 2022. On February 9, 2022, Acme Publications, which specializes in high quality nude and non-nude celebrity and model photographs sent Plaintiff an order form and offer 14 to place a custom order. Plaintiff ordered 6 custom celebrity sexy photos and sent his order form 15 to his family. 16 On March 28-30, 2022, Defendant Enriquez applied the FCJ Policy #E-120 and logged 17 the package for Plaintiff as “sexually suggestive photographs” and immediately returned to 18 sender the entire package. Enriquez inflicted mental trauma on Plaintiff each time she disallowed 19 Plaintiff’s possession of publications on February 27, 2022, March 8, 2022, May 11, 2022, and 20 March 28-30, 2022. Defendants Enriquez, Nichols, Keoniyom knew that Plaintiff was housed in 21 Ad-seg without any privileges and needed mail to prevent mental suffering. 22 Defendant Keoniyom applied the FCJ Policy #E-120 on April 19, 26 and 28, 2022 to 23 Plaintiff’s order from “Inmate Services Company” of non-nude photographs as “sexually 24 explicit” and returned the photographs to the sender. 25 Acme modified plaintiff’s custom order after the rejection and reshipped the 3 catalog 26 photos and full catalog on April 15, 2022. 27 Defendant Keoniyom punished Plaintiff on April 26-28, 2022 under the FCJ Policy #E- 28 1 120 by applying the policy to the same non-nude catalog that had been rejected by Defendant 2 Enriquez. Defendant Keoniyom logged the material as sexually explicit photos and returned to 3 sender the entire mailing. None of the photos were sexually explicit or obscene. 4 The legislature has not given FCJ defendants authority to define obscene or sexually 5 explicit material more broadly that Penal Code 311 and 15 CCR 3006(e). Section 3006(e) 6 authorizes exclusion of only patently offensive material whereas sexual expression that is 7 indecent but not obscene is protected. The sexy-provocative poses and clothing displaying in the 8 subject photos are not obscene or pornographic. 9 Nichols applied the FCJ Policy #E-120 in December 2019, March 8, 2020, May 11, 2020 10 and March 30, 2022. Keoniyom enforced the FCJ Policy #E-120, which Nichols permitted, 11 against Plaintiff on April 19, 28, 2022. Defendant Nichols removed evidence from Plaintiff’s 12 grievance packet during the May 4-5, 2022 investigation of the April 26-28, 2022 Keoniyom 13 deprivation of mail. Plaintiff suffered mental trauma and oppression when Defendants Keoniyom, Mims, 14 McComas, Enriquez and Nichols subjected him to conditions worse than prison and has suffered, 15 anxiety, loneliness, frustration, anguish, stigma and loss of money from their implementation and 16 enforcement of the FCJ Policy #E-120. 17 Plaintiff seeks monetary damages. 18 III. Discussion 19 A. Request for Judicial Notice 20 Plaintiff requests the Court to take judicial notice of FCJ Policy #E-120, attached as Exh. 21 1, FCJ policy #E-410 attached as Exh. 2, Acme Publications non-nude photo catalog page 22 attached as Exh. 3, Prison contraband rules §§3006 and 3135 attached as Exh. 4 and Sexy non- 23 nude magazine sample covers attached as Exh. 5. 24 Rule 201(b) of the Federal Rules of Evidence provides that a court may judicially notice a 25 fact that is not subject to reasonable dispute because it: (1) is generally known within the trial 26 court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 27 accuracy cannot reasonable be questioned. Fed. R. Evid. 201(b). Here, FCJ Policy #E-120, FCJ 28 1 Policy #E-410, and 15 CCR §§3006, 3135 are the type of facts the Court may take judicial notice. 2 The other information or facts Plaintiff seeks this Court to take judicial notice of cannot be 3 judicially noticed. See e.g., M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 4 1491 (9th Cir. 1983) (a court cannot generally take judicial notice of the underlying “factual 5 findings of proceedings or records in another cause so as to supply, without formal introduction 6 of evidence, facts essential to support a contention in a cause then before it”). 7 B. Supervisory Liability 8 To the extent Plaintiff seeks to hold any defendant liable based solely upon their 9 supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for 10 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 11 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. 12 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th 13 Cir. 2002). “A supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 14 wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th 15 Cir. 2013) (citation and quotation marks omitted); accord Lemire v. Cal. Dep’t of Corrs. & 16 Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 17 (9th Cir. 2012) (en banc). “ 18 Plaintiff alleges that Defendant McComas should have trained personnel differently or 19 better. A “failure to train” theory can be the basis for a supervisor's liability under § 1983 in only 20 limited circumstances, such as where the failure amounts to deliberate indifference. See City of 21 Canton v. Harris, 489 U.S. 378, 387–90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To establish a 22 failure to train claim, a plaintiff must show that “‘in light of the duties assigned to specific 23 officers or employees, the need for more or different training [was] obvious, and the inadequacy 24 so likely to result in violations of constitutional rights, that the policy-makers ... can reasonably be 25 said to have been deliberately indifferent to the need.’” Clement v. Gomez, 298 F.3d 898, 905 (9th 26 Cir. 2002) (quoting Canton, 489 U.S. at 390, 109 S.Ct. 1197). Plaintiff has not alleged facts 27 demonstrating that Defendant was deliberately indifferent to a need for more or different training. 28 1 Plaintiff's factual allegations regarding lack of training are limited to a conclusory statement that 2 the defendant failed to train the other defendants. 3 C. First Amendment – Challenge to Jail Mail Policy 4 Prisoners have “‘a First Amendment right to send and receive mail,’ but prison regulations 5 may curtail that right if the ‘regulations are reasonably related to legitimate penological 6 interests.’” Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017) (quoting Witherow v. Paff, 7 52 F.3d 264, 265 (9th Cir. 1995) (per curiam)). However, a temporary delay or isolated incident 8 of delay or other mail interference without evidence of improper motive does not violate a 9 prisoner's First Amendment rights. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (as 10 amended); see Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); Smith v. Maschner, 899 F.2d 11 940, 944 (10th Cir. 1990); Watkins v. Curry, 2011 WL 5079532, at *4 (N.D. Cal. Oct. 25, 2011) 12 (finding that an isolated incident of mail mishandling, without evidence that the delay was based 13 on the content of the letter or that the one-year delay was purposeful, fails to show First Amendment violation); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“Challenges to 14 restrictions of first amendment rights must be analyzed in terms of the legitimate policies and 15 goals of the correctional institution in the preservation of internal order and discipline, 16 maintenance of institutional security, and rehabilitation of prisoners.”). 17 When considering prison regulations on incoming publications, “[s]ome content 18 regulation is permissible in the prison context.” McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 19 1987); see Beard v. Banks, 548 U.S. 521, 531-32 (2006) (analyzing prison inmate's challenge to a 20 state Department of Corrections policy restricting access to newspapers, magazines, and 21 photographs under the Turner factors). Prison officials do not need to show that there is no less 22 restrictive mail policy that could serve the same penological interests. See Thornburgh v. Abbott, 23 490 U.S. 401, 412 (1989). This right is subject to “substantial limitations and restrictions in order 24 to allow prison officials to achieve legitimate correctional goals and maintain institutional 25 security.” Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990) (citations omitted). Courts owe 26 “substantial deference to the professional judgment of prison administrators.” Overton v. 27 Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). In order for the policy to 28 1 be upheld, it must be “reasonably related to legitimate penological interests.” Turner v. Safley, 2 482 U.S. at 89, 107 S.Ct. 2254. In Turner, the Supreme Court held that “when a prison regulation 3 impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to 4 legitimate penological interests.” 482 U.S. at 89. 5 There are four factors relevant to the Turner reasonableness inquiry: (1) whether the regulation is rationally related to a legitimate and neutral governmental 6 objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on 7 other guards and prisoners, and on the allocation of prison resources; and (4) whether 8 the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. 9 10 Plaintiff challenges FCJ Policy #E-120.2 (Doc. 10, Exh. 1). In relevant part, the policy 11 states the following regarding sexually explicit or obscene material (Doc. 10, Exh. 1, p. 41): 12 13 “C. Nude or sexually suggestive photographs (individual prints or copies, as opposed to those from publications) present special concerns about personal 14 safety, security, and good order, particularly when the subject is an inmate’s relative, friend, or acquaintance or could reasonable be perceived as such. For 15 these reasons, an inmate may not be permitted to retain, receive, or possess a 16 personal photograph in which the subject is partially nude or naked, overtly sexual or sexually suggestive. Persons must be clothed in a manner that would be 17 generally accepted in the community as a whole. Any intent to show nudity, including, but not limited to the following, will be returned as unacceptable: 18 1. Any photograph that displays an exposed female breast. This includes 19 photos that have been altered to obscure or conceal the areola (e.g., 20 strategically places stickers, digitally altered, etc.) Undergarments must be work beneath clothing that is sheer/translucent, lace, mesh, etc. 21 2. Any photo that displays the genitalia, pubic area, or anus of either gender (including those waring clothing that by design or by manner in 22 which it is worn, allows the anatomical detail of genitalia to be clearly viewed). 23 3. Any nude photographs of infants or children. 24 25 (ECF No. 10, p.40.) The purpose of this policy is stated as: 26 “In order to prevent a discriminatory and hostile work environment and reduce sexual harassment for inmates, staff, and volunteers, inmates are not permitted to 27 28 2 See footnote 1. 1 send, receive, possess, or have under their control obscene material and/or mail containing information concerning where, how, or from whom obscene material 2 may be obtained.” 3 Id. at p. 41. 4 Plaintiff alleges that the material seized was non-nude photos depicted in publications. 5 Plaintiff argues the FCJ Policy #E-120 applies to common depictions of ordinary and lawful 6 activities, and that these depictions constitute photographs and catalogs subject to the policy. 7 1. Facial Challenge 8 A constitutional challenge to a policy is “‘facial’ [if] it is not limited to plaintiff[’s] 9 particular case, but challenges application of the law more broadly. . . .” John Doe No. 1 v. Reed, 10 561 U.S. 186, 194 (2010) (facial challenges “reach beyond the particular circumstances of these 11 plaintiffs.”) Facial challenges are disfavored. Wash. State Grange v. Wash. State Republican 12 Party, 552 U.S. 442, 450 (2008). “A facial challenge to a [policy] is, of course, the most difficult 13 challenge to mount successfully, since the challenger must establish that no set of circumstances 14 exists under which the [policy] would be valid. The fact that the [policy] might operate 15 unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly 16 invalid[.]” United States v. Salerno, 481 U.S. 739, 745 (1987). 17 In the First Amendment context, however, the Court has “recognize[d] ‘a second type of 18 facial challenge,’ whereby a law may be invalidated as overbroad if ‘a substantial number of its 19 applications are unconstitutional, judged in relation to [its] plainly legitimate sweep.’ ” United 20 States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577 (quoting Washington State Grange v. 21 Washington State Republican Party, 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 22 (2008)). When a plaintiff presents such a facial challenge to a prison regulation, Courts evaluate it 23 using the Turner framework, just as it would if the challenge were to a specific application of the 24 regulation. Bahrampour v. Lampert, 356 F.3d 975 (9th Cir.2004) (upholding refusal to deliver 25 depictions of actual or simulated sexual acts). 26 Before the Court can apply the Turner factors, it must construe the challenged policy. See 27 United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (“[I]t is 28 impossible to determine whether a statute reaches too far without first knowing what the statute 1 covers.”) (citing United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 2 (2008)). 3 The Court’s interpretation of FCJ Policy #E-120 should be informed by the parties’ 4 arguments regarding the terminology in the policy. See Prison Legal News v. Ryan, 39 F.4th 5 1121, 1130-32 (9th Cir. 2022) (evaluating each parties arguments regarding the meaning of the 6 challenged language). In addition, at screening, the Court should not unilaterally apply the 7 Turner factors. For instance, the Court cannot determine, at this point, whether the policy is 8 “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. Plaintiff alleges 9 that the safety and security concerns were a mere pretext. See Prison Legal News v. Ryan, 39 10 F.4th 1121, 1133 (9th Cir. 2022) (finding that provision prohibiting publications in an Arizona 11 jail facility “that may, could reasonably be anticipated to, could reasonably result in, is or appears 12 to be intended to cause or encourage sexual excitement or arousal or hostile behaviors, or that 13 depicts sexually suggestive settings, poses or attire” was not rationally related to prohibiting the threat to “prison interests”). As the Court cannot interpret FCJ Policy #E-120 or apply the Turner 14 factors, the Court finds that Plaintiff states a cognizable claim for violation of the First 15 Amendment for FCJ Policy #E-120 against Defendant Mims and McComas. 16 2. As-Applied Challenge 17 “ ‘[A] [policy] ... may be held constitutionally invalid as applied when it operates to 18 deprive an individual of a protected right although its general validity as a measure enacted in the 19 legitimate exercise of state power is beyond question.’ ” Little v. Streater, 452 U.S. 1, 16 (1981) 20 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). Thus, to support an “as applied” 21 challenge, Plaintiff must show that his individual circumstances make the general application of 22 the FCJ Policy #E-120 policy unconstitutional. See Doe v. United States, 419 F.3d 1058, 1063 23 (9th Cir. 2005). As-applied challenges are also subject to the Turner framework. Prison Legal 24 News v. Ryan, 39 F.4th at 1135. 25 Accepting Plaintiff's factual allegations as true, liberally construing the allegations, and 26 also drawing all inferences therefrom in Plaintiff's favor, as the Court must at this stage, Plaintiff 27 states a cognizable claim that the confiscation of his magazines, catalogs, and photographs, 28 1 violated the First Amendment. At the screening stage, the Court cannot ascertain the balancing 2 required for the Turner factors.. Here, jail officials allegedly returned/banned entire issues of 3 magazines and catalogs because they contained photographs of non-nude people in bikinis and in 4 “suggestive” poses. If true, such a ban could extend to virtually any magazine or newspaper 5 simply because of a single advertisement for swim wear, for example. Plaintiff states a cognizable 6 as-applied claim against Defendant Enriquez, Nichols and Keoniyom. 7 D. Due Process - Failure to Provide Notice 8 A prisoner also has a Fourteenth Amendment due process liberty interest in receiving 9 notice that his incoming mail has been withheld by prison authorities. Frost v. Symington, 197 10 F.3d 348, 353 (9th Cir. 1999). Nevertheless, prisons may regulate the processing of inmate mail 11 so long as those regulations further an important or substantial government interest other than the 12 suppression of expression. See Procunier v. Martinez, 416 U.S. 396, 411-12 (1974), overruled on 13 other grounds, Thornburgh v. Abbott, 490 U.S. 401, 412-414 (1989); Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (jail personnel may regulate speech if a restriction is reasonably 14 related to legitimate penological interests and an inmate is not deprived of all means of 15 expression, citing Turner v. Safley, 482 U.S. 78, 92 (1986)). Thus, prisons may regulate the 16 processing of inmate mail so long as those regulations further an important or substantial 17 government interest other than the suppression of expression. See Procunier, 416 U.S. at 411-12, 18 413-14. “Prevention of criminal activity and the maintenance of prison security are legitimate 19 penological interests which justify the regulation of both incoming and outgoing prisoner mail.” 20 In Procunier, the Supreme Court held “that the decision to censor or withhold delivery of 21 a particular letter must be accompanied by minimum procedural safeguards.” 416 U.S. at 417-18. 22 Specifically, an inmate “has a Fourteenth Amendment due process liberty interest in receiving 23 notice that his incoming mail is being withheld by prison authorities.” Frost v. Symington, 197 24 F.3d 348, 353-54 (9th Cir. 1999). This liberty interest is protected from “arbitrary government 25 invasion,” and any decision to censor or withhold delivery of mail must be accompanied by 26 “minimum procedural safeguards.” Sikorski v. Whorton, 631 F. Supp. 2d 1327, 1341 (D. Nev. 27 2009) (quoting Procunier, 416 U.S. at 417-18.) The “minimum procedural safeguards” are: (1) 28 1 notifying the inmate that the mail was seized; (2) allowing the inmate a reasonable opportunity to 2 protest the decision; and (3) referring any complaints to a prison official other than the one who 3 seized the mail. Procunier, 416 U.S. at 418-19; Krug v. Lutz, 329 F.3d 692, 697-08 (9th Cir. 4 2003) (“Following Thornburgh, this circuit has repeatedly acknowledged that withholding 5 delivery of inmate mail must be accompanied by the minimum procedural safeguards established 6 in [Procunier].”). 7 Plaintiff alleges he was not provided notice that his photographs, catalogs and magazines 8 were returned to the sender before they were returned. Liberally construing the allegations, 9 Plaintiff states a cognizable claim for violation of due process against officers who returned mail, 10 Enriquez, Keoniyom and Nichols. 11 E. Failure to Investigate 12 Plaintiff alleges Defendant Nichols removed evidence from Plaintiff’s grievance packet 13 during the May 4-5, 2022 investigation. To the extent Plaintiff alleges that there was an inadequate investigation, Plaintiff's claims 14 are not a basis for a plausible § 1983 claim. Baker v. Beam, 2019 WL 1455321, at *6 (E.D. Cal. 15 2019). To the degree Plaintiff is trying to hold the individuals or others liable for an independent, 16 unspecified constitutional violation based upon an allegedly inadequate investigation, there is no 17 such claim. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (“[W]e can 18 find no instance where the courts have recognized inadequate investigation as sufficient to state a 19 civil rights claim unless there was another recognized constitutional right involved.”); Page v. 20 Stanley, 2013 WL 2456798, at *8–9 (C.D. Cal. June 5, 2013) (dismissing Section 1983 claim 21 alleging that officers failed to conduct thorough investigation of plaintiff's complaints because 22 plaintiff “had no constitutional right to any investigation of his citizen's complaint, much less a 23 ‘thorough’ investigation or a particular outcome”); Tirado v. Santiago, No. 1:22-CV-00724 BAM 24 PC, 2022 WL 4586294, at *5 (E.D. Cal. Sept. 29, 2022), report and recommendation adopted, 25 No. 1:22-CV-00724 JLT BAM PC, 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) (no 26 constitutional claim for failing to investigate an appeal). 27 /// 28 1 F. State Law Claims 2 To the extent Plaintiff also alleges violations of California law, Plaintiff is informed that 3 the California Government Claims Act requires that a tort claim against a public entity or its 4 employees be presented to the California Victim Compensation and Government Claims Board 5 no more than six months after the cause of action accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 6 945.4, 950-950.2. Presentation of a written claim, and action on or rejection of the claim are 7 conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 8 1239 (Cal. 2004); Shirk v. Vista Unified School District, 42 Cal.4th 201, 209 (2007). To state a 9 tort claim against a public employee, a plaintiff must allege compliance with the California Tort 10 Claims Act. Cal. Gov't Code § 950.6; Bodde, 32 Cal.4th at 1244. “[F]ailure to allege facts 11 demonstrating or excusing compliance with the requirement subjects a compliant to general 12 demurrer for failure to state a cause of action.” Bodde, 32 Cal.4th at 1239. 13 As Plaintiff has not alleged compliance with the Government Claims Act, he has failed to state a claim under California law. 14 IV. Conclusion and Recommendation 15 Based on the above, the Court finds that Plaintiff’s first amended complaint, filed 16 December 13, 2022 (ECF No. 10), states a cognizable claim for: (1) violation of the First 17 Amendment based on a facial challenge to FCJ Policy #E-120 and #E-410 against Defendants 18 Mims and McComas, (2) violation of the First Amendment based on an as-applied challenge to 19 FCJ Policy #E-120 and #E-410 against Enriquez, Keoniyom and Nichols, and (3) for violation of 20 Due Process against officers who returned Plaintiff’s mail, Enriquez, Keoniyom and Nichols. 21 Despite being provided with the relevant pleading and legal standards, Plaintiff has been unable 22 to cure the identified deficiencies and further leave to amend is not warranted. Lopez v. Smith, 23 203 F.3d 1122, 1130 (9th Cir. 2000). 24 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 25 District Judge to this action. 26 Furthermore, IT IS HEREBY RECOMMENDED that: 27 1. This action proceed on Plaintiff’s first amended complaint, filed on December 13, 28 1 2022 (ECF No. 10) ), for: (1) violation of the First Amendment based on a facial 2 challenge to FCJ Policy #E-120 and #E-410 against Defendants Margaret Mims 3 (outgoing Sheriff) and Steve McComas (Assistant Sheriff), (2) violation of the First 4 Amendment based on an as-applied challenge to FCJ Policy #E-120 and #E-410 5 against Enriquez (Correctional Officer), Keoniyom (Correctional Officer), and 6 Nichols (Mailroom Sergeant), and (3) for violation of Due Process against officers 7 who returned Plaintiff’s mail, Enriquez, Keoniyom and Nichols; and 8 2. All other claims be dismissed based on Plaintiff’s failure to state claims upon which 9 relief may be granted. 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 12 being served with these Findings and Recommendations, Plaintiff may file written objections 13 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 14 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 15 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 16 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19 20 Dated: December 30, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28